L'aménagement des droits des actionnaires après l'ordonnance du 24 juin 2004

(ii) Fate of the actions preferably in the event of fusion or scission

358. - The Commercial law also leans on fusion and the scission under the terms of which the transmitter of actions preferably transmits its inheritance to one or more other companies.

In fact, the article L. 228-17 of the Commercial law provides that in such occurrences « the actions preferably can be exchanged against actions of the profit companies of the transfer of inheritance comprising of the equivalent particular rights, or according to a specific parity of exchange taking account of the abandoned particular rights », and specifies that « in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99 ».

Two assumptions are thus to distinguish.

359. - That is to say the actions preferably are exchanged against titles profiting from equivalent rights. In this case, it is not obligatory to join together the special assembly of the carriers to approve fusion or the scission.

This rule must be included/understood like an exemption from the general provision appearing in the mode of fusions or scissions of limited companies which requires the ratification of the operation by the special assemblies of the stockholders of capital of a given category^655(*).

360. - That is to say the actions preferably are exchanged against titles of capital not comprising equivalent rights. In this case, a parity of exchange taking account of the abandoned particular rights must be established, and it is necessary to submit the project of fusion or scission to the special assembly of the holders of actions preferably, for approval.

361. - The device thus appears simple. It would be it, if were not the difficulty in appreciating what it is advisable to understand exactly by « equivalent particular rights » within the meaning of the new text. The question is important since it is a question of knowing in which cases exactly the transmitter can preferably not consult its special assembly of the holders of actions.

Questioned on the question, the Minister for Justice, let know that the formula of the article L. 228-17 of the Commercial law allowed, according to him, « the exchange of actions preferably giving right, for example, with a preferential attribution of dividend or the designation of a member of the board of trustees preferably counters other actions giving right to preferential attribution of a dividend or designation of a member of the board of trustees, by taking account possibly of a parity of exchange according to the reduction of right agreed. On the other hand, if there does not exist in the new company of actions preferably having equivalent particular rights, the parity of exchange will have to take account of the abandonment »^656(*).

362. - Thus, according to the example chosen, it would be the identity of the particular rights which are attached to the actions preferably- still that the answer suggests that it could be necessary to calculate, even on this assumption, a particular parity- which would be the criterion, and not really the equivalence which however the article L evokes. 228-17.

The criterion would be undoubtedly more reliable, although the identical rights can not have the same value perfectly according to whether one exerts them in a surviving company (with strong profitability for example) or that one has to exert them in the surviving company (which can heavily be involved in debt).

By prudence, it would have to be required that not only the particular rights be of comparable nature, but that they also have the same value exactly because, finally, it is the double question of the maintenance of the rights, initially, then of the parity, « particular » or not, then, which justifies that one consults- or not- the special assembly of the holders of actions preferably^657(*).

363. - Consequently, it is not certain that the ministerial answer given usefully informs the debate on the direction which it is advisable to give to the new article L. 228-17 of the Commercial law. One can think besides that this article complicates the things insofar as the article L. 236-9 of the same Code, suitable for fusion, is not embarrassed, him, of these subtle distinctions when it orders to submit the project of fusion « in each the companies which take part in the operation, with the ratification of the special assemblies shareholders mentioned with the articles L. 225-99 and L. 228-15 ».

The practice will thus may find it beneficial undoubtedly to continue to preferably consult the general assembly of the holders of actions in all the cases of figure^658(*).

364. - It should be noted that nothing is known as mission of the police chiefs to fusion in the presence of actions preferably. Since they have in particular the obligation to check «that the report/ratio of exchange is equitable »^659(*), it would not be logical that they can ignore this question of equivalence of the rights^660(*).

The occupation of auditor is requested besides with another title, that of the information of the shareholders preferably.

* ⁶⁵⁵ Art L. 236-9 and L. 236-16 C. Com.

* ⁶⁵⁶ Reference mark. Min. Justice with Mr. ADNOT n° 13316, OJ Senate Q, September 30, 2004, p. 2236.

* ⁶⁵⁷ In this direction, H. Nabasque, «  Leaves the actions preferably in the event of fusion or scission of the transmitting company  », Banking RD and financier 2005, p. 30.

* ⁶⁵⁸ In this direction, H. Nabasque, «  Leaves the actions preferably in the event of fusion or scission of the transmitting company  », art préc.

* ⁶⁵⁹ Art L. 236-10, II C. Com.

* ⁶⁶⁰ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1537.